101 U.S.

503
101 U.S. 503
25 L.Ed. 829

HALL
v.
RUSSELL.
October Term, 1879

APPEAL from the Circuit Court of the United States for the District of
Oregon.
The facts are stated in the opinion of the court.
Mr. William W. Chapman and Mr. Timothy D. Lincoln for the appellants.
Mr. George H. Williams, contra.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This is a bill in equity filed by the heirs of the devisee of James L. Loring,
deceased, and the administrator of Loring with the will annexed, to obtain the
legal title to a tract of three hundred and three acres of land near Portland,
Oregon, which, as the complainants claim, the defendants hold in trust for
them. The facts material to the view we take of the case are as follows:

In the month of April, 1852, Loring, a single man, settled on the land in dispute
with a view to becoming its owner under the operation of the Oregon Donation
Act. 9 Stat. 496. He had all the qualifications necessary to enable him to take
and hold under the act, but died after a residence on the land of less than a year,
leaving a will, executed in Ohio in 1849, whereby he devised all his estate
remaining after the payment of some small legacies, to Samuel Parker Hall,
then of Cincinnati, Ohio, but now deceased.

On the death of Loring, Joshua Delay claimed the land as a settler in behalf of
himself and his wife, Sarah Delay, and after a contest with the representatives
of Loring before the officers of the Land Department, the heirs of the Delays
succeeded in obtaining a patent. Much litigation ensued between them and the

heirs of Loring about the title, but, finally, all the estate of both these parties
was transferred to the present defendants, in whom it is now vested, but with
full knowledge, before the transfer, of the claim of the complainants. The
theory of the present suit is that Loring, by his settlement, acquired an estate in
the lands which passed by his will, and that the heirs of the Delays took title
under the patent issued to them in trust for the devisee of Loring as the real
owner of the property. The court below dismissed the bill for the reason,
among others, that Loring had no devisable estate in the lands when he died,
and, consequently, his devisee took nothing by the will.
4

The case, therefore, in this aspect, presents the question directly whether the
heirs of a settler under the Oregon Donation Act, who died before the
expiration of the four years' residence and cultivation required, took by descent
from the settler, or as donees of the United States. If by descent, it is conceded
the settler had a devisable estate. If as donees, he had not.

The sections of the act material to the determination of this question are the
fourth, fifth, sixth, seventh, eighth, and twelfth. The fourth is as follows:

'SECT. 4. That there shall be, and hereby is, granted to every white settler or
occupant of the public lands, American half-breed Indians included, above the
age of eighteen years, being a citizen of the United States, or having made a
declaration according to law, of his intention to become a citizen, or who shall
make such declaration on or before the first day of December, eighteen hundred
and fifty-one, now residing in said Territory, or who shall become a resident
thereof on or before the first day of December, 1850, and who shall have
resided upon and cultivated the same for four consecutive years, and shall
otherwise conform to the provisions of this act, the quantity of one-half section,
or three hundred and twenty acres of land, if a single man, and if a married
man, or if he shall become married within one year from the first day of
December, 1850, the quantity of one section, or six hundred and forty acres,
one-half to himself and the other half to his wife, to be held by her in her own
right; and the surveyor-general shall designate the part inuring to the husband
and that to the wife, and enter the same on the records of his office; and in all
cases where such married persons have complied with the provisions of this
act, so as to entitle them to the grant as above provided, whether under the late
provisional government of Oregon, or since, and either shall have died before
patent issues, the survivor and children, or heirs of the deceased, shall be
entitled to the share or interest of the deceased in equal proportions, except
where the deceased shall otherwise dispose of it by testament duly and properly
executed according to the laws of Oregon. Provided, that no alien shall be
entitled to a patent to land, granted by this act, until he shall produce, to the

surveyor-general of Oregon, record evidence that his naturalization as a citizen

of the United States has been completed; but if any alien, having made his
declaration of an intention to become a citizen of the United States, after the
passage of this act, shall die before his naturalization shall be completed, the
possessory right acquired by him under the provisions of this act, shall descend
to his heirs-at-law, or pass to his devisees, to whom, as the case may be, the
patent shall issue. Provided further, that in all cases provided for in this section,
the donation shall embrace the land actually occupied and cultivated by the
settler thereon. Provided further, that all future contracts by any person or
persons entitled to the benefit of this act, for the sale of the land to which he or
they may be entitled under this act, before he or they had received a patent
therefor, shall be void. Provided further, however, that this section shall not be
so construed as to allow those claiming rights under the treaty with Great
Britain, relative to the Oregon Territory, to claim both under this grant and the
treaty, but merely to secure them the election, and confine them to a single
grant of land.'
7

The fifth provides 'that to all white male citizens of the United States . . .
emigrating to and settling in said Territory between the first day of December,
1850, and the first day of December, 1853, . . . who shall . . . comply with the
foregoing section, and the provisions of this law, there shall be and hereby is
granted the quantity of one quarter-section . . . if a single man; or if married . . .
the quantity of one half-section . . .'

Sect. 6 provides that within three months after the survey has been made, or
after the commencement of the settlement, each settler shall notify the
surveyor-general of the precise tract claimed by him, and that the surveyorgeneral shall enter a description of such claims in a book to be kept by him for
that purpose.

Sect. 7 provides that, within twelve months after the survey or settlement, each
person claiming a donation right shall prove to the surveyor-general that the
settlement and cultivation have been commenced, specifying the time of the
commencement; and that he shall, after the expiration of four years from the
date of his settlement, prove in like manner the fact of continued residence and
cultivation required by the fourth section; and upon such proof being made, the
surveyor-general, or other officer appointed by law for that purpose, shall issue
certificates under such rules and regulations as may be prescribed by the
Commissioner of the General Land-Office, setting forth the facts in the case,
and specifying the land to which the parties are entitled. And the said surveyorgeneral shall return the proof so taken to the office of the Commissioner of the
General Land-Office, and if the said commissioner shall find no valid

objections thereto, patents shall issue for the land according to the certificates
aforesaid, upon the surrender thereof.'
10

'SECT. 8. That upon the death of any settler before the expiration of the four
years continued possession required by this act, all the rights of the deceased,
under this act, shall descend to the heirs-at-law of such settler, including the
widow, where one is left, in equal parts, and proof of compliance with the
conditions of this act up to the time of the death of such settler, shall be
sufficient to entitle them to the patent.'

11

Sect. 12 provides that all persons claiming by virtue of sett ement and
cultivation commenced subsequently to Dec. 1, 1850, shall make affidavit that
the land is for their own use and cultivation.

12

The rights of Loring and those who claim under him all depend on sect. 4.
Whatever he took was by virtue of the grant there made. If that section gave
him no devisable estate before the completion of the required four years'
residence and cultivation, he had none. The other sections may be resorted to if
necessary to get at the meaning of this, but this alone, when its meaning is
ascertained, fixes the limit of the donation made to him.

13

The anomalous condition of affairs in Oregon Territory when this act was
passed has been heretofore brought to our attention. Stark v. Starrs, 6 Wall.
402; Lamb v. Davenport, 18 id. 307; Stark v. Starr, 94 U. S. 477; Barney v.
Dolph, 97 id. 652. For many years the inhabitants had been without any
government except that which they had themselves organized for their own
protection. The ownership of the soil on which they lived was in dispute
between the United States and Great Britain. Under the operation of treaty
stipulations for a joint occupation of the Territory, extensive settlements had
grown up, and the people in governing themselves had adopted land laws
which made occupancy the basis of ownership as between settlers. While
waiting for the contesting sovereign claimants to determine which of the two
should be the acknowledged owner of the soil, they contented themselves with
regulating their rights of occupancy as between each other, trusting to the
bounty of the government under whose sole dominion they should ultimately
fall, for a grant of title to the land itself. The first of these acts was passed in
1844. Laws of Oregon, 1843 to 1849, 77. Under this only free males, over the
age of eighteen, who would be entitled to vote if of lawful age, and widows,
were entitled to hold a 'claim,' save that a married man under eighteen was not
debarred. A claim was also confined to six hundred and forty acres or less.
Permanent improvements and continuous occupation and cultivation were
essential to the preservation of the rights conferred. Following this was the

'Land Law,' contained in the organic law of the provisional government which
went into operation in 1846. Ter. Stat. Oregon (1851), 32, art. 3. This law
relaxed somewhat the stringency of the former act as to actual occupation, and
extended the privilege of establishing claims to all residents of the Territory.
By the act of Congress creating a territorial government for Oregon, approved
Aug. 14, 1848 (9 Stat. 323), all laws theretofore passed in the Territory making
grants of land, or otherwise affecting or incumbering the title to lands, were
declared void, but all other laws in force under the authority of the provisional
government were continued in operation so far as they were not incompatible
with the constitution or the principles and provisions of that act. All laws
passed by the legislative assembly of the Territory were to be submitted to
Congress, and if disapproved were to be null and void. Sect. 6.
14

Doubts having arisen whether, after the establishment of the territorial

government, the land law of the provisional government was in force, an act of
the territorial legislature was passed Sept. 12, 1849, expressly declaring it to be
so, and some additional provisions were made consistent with the title of the
new act, which was 'An Act to prevent injuries to the possession of settlers on
public lands.' Ter. Laws (1851), 246. By sect. 5 of this act it was provided that
'land claims shall descend to, and be inherited by the heirs-at-law of the
claimant, in the same manner as is provided by law for the descent of real
estate.' On Sept. 26, 1849, 'An act respecting wills' was passed by the territorial
legislature. Ter. Stat. (1851), 274. By this act every person of twenty-one years
of age and upwrds, of sound mind, might, by 'last will, devise all his estate, real,
personal, and mixed, and all interests therein, saving to the widow her dower.'
Before the passage of the act of September 12, if a person died in the lawful
possession of a land claim, it formed part of his personal estate, and was to be
disposed of by his executors or administrators for the benefit of his legal heirs.
Laws of Oregon, 1843 to 1849, 61.

15

It was in the midst of this condition of affairs that the Donation Act was passed.
Congress had the right, on assuming undisputed dominion over the Territory, to
confine its bounties to settlers within just such limits as it chose. The settlers
had no title to the soil, and the legislation under the provisional government, as
well as that by the territorial legislature, had no other effect than to regulate
possessory rights on the public domain in the absence of congressional
interference.

16

The opening words of sect. 4 are 'that there shall be, and hereby is, granted.'
This is appropriate language in which to express a present grant, but as was
well remarked by Mr. Justice Field for the court in Missouri, Kansas, and
Texas Railway Company v. Kansas Pacific Railway Company (97 U. S. 491), 'It

is always to be borne in mind, in construing a congressional grant, that the act

by which it is made is a law as well as a conveyance, and that such effect must
be given to it as will carry out the intent of Congress.' There cannot be a grant
unless there is a grantee, and consequently there cannot be a present grant
unless there is a present grantee. If, then, the law making the grant indicates a
future grantee and not a present one, the grant will take effect in the future and
not presently. In all the cases in which we have given these words the effect of
an immediate and present transfer, it will be found that the law has designated a
grantee qualified to take, according to the terms of the law, and actually in
existence at the time. Thus, in Rutherford v. Greene's Heirs (2 Wheat. 196), the
grantee was Major-General Greene; Lessieur v. Price (12 How. 59), the State
of Missouri; in United States v. Arredondo (6 Pet. 691), Arredondo & Son; in
Fremont v. United States (17 How. 542), Alvarado; in Schulenburg v.
Harriman (21 Wall. 44), the State of Wisconsin; in Leavenworth, Lawrence,
and Galveston Railroad Company v. United States (92 U. S. 733), the State of
Kansas; and, without particularizing further, it may be said generally that in the
swamp-land cases and all the internal-improvement-grant cases, where for the
most part the question has arisen of late, if a grant has been held to take effect
presently, the State or some corporation, having all the qualifications specified
in the act, has been designated as grantee. In other words, when an immediate
grant was intended an immediate grantee, having all the requisite qualifications,
was named.
17

Coming then to the present case we find that the grantee designated was any
qualified 'settler or occupant of the public lands . . . who shall have resided
upon and cultivated the same for four consecutive years, and shall otherwise
conform to the provisions of the act.' The grant was not to a settler only, but to a
settler who had completed the four years of residence, &c., and had otherwise
conformed to the act. Whenever a settler qualified himself to become a grantee,
he took the grant and his right to a transfer of the legal title from the United
States became vested. But until he was qualified to take, there was no actual
grant of the soil. The act of Congress made the transfer only when the settler
brought himself within the description of those designated as grantees. A
present right to occupy and maintain possession, so as to acquire a complete
title to the soil, was granted to every white person in the Territory having the
other requisite qualifications, but beyond this nothing passed until all was done
that was necessary to entitle the occupant to a grant of the land. Whether the
fee passed out of the United States before the claim was 'proved up,' it is not
necessary now to consider. For the purposes of the present suit it is enough to
show that the occupant got no title himself, beyond that of a mere right of
possession, until he had completed his four years of continued residence and
cultivation.

18

That such was the clear intention of Congress we think is manifested in many
provisions of the act. Thus, where married persons 'have complied with the
provisions of the act, so as to entitle them to the grant as above provided,
whether under the late provisional government of Oregon, or since, and either
shall die before patent issues, the survivor and children or heirs of the deceased
shall be entitled to the share or interest of the deceased in equal proportions,
except where the deceased shall otherwise dispose of it by testament, duly and
properly executed according to the laws of Oregon.' This evidently related to
such married persons as had completed their four years' residence and
cultivation, and had done the other things required in the mean time; that is to
say, had given notice of the precise tract claimed (sect. 6), and had proved the
commencement of their settlement and cultivation (sect. 7). These were the
provisions to be complied with 'so as to entitle them to a grant.' As there could
be no grant until there was some person entitled to receive it, the conclusion
would seem to be irresistible that, under this provision, married settlers had no
estate in the land which they could devise by will, until from being qualified
settlers only they had become qualified grantees. Having completed their
settlement, and nothing remaining to be done but to get their patent, their estate
in the land was one they could devise by will, or which would go to the
surviving husband or wife and children or heirs of a deceased married person.
Not so, however, with the mere possessory rights which preceded a compliance
with the provisions of the act so as to entitle the settlers to their grant of the
land.

19

Again: 'No alien shall be entitled to a patent for land, granted by this act, until
he shall produce to the surveyor-general of Oregon record evidence that his
naturalization as a citizen of the United States has been completed; but if any
alien, having made his declaration of intention to become a citizen of the
United States, after the passage of this act, shall die before his naturalization
shall be completed, the possessory right acquired by him under the provisions
of this act shall descend to his heirs-at-law or pass to his devisees, to whom, as
the case may be, the patent shall issue.' An alien who had declared his intention
to become a citizen, or who should do so before Dec. 1, 1850, was a qualified
settler, but he was not a qualified grantee until he had completed his
naturalization. As no patent could be issued to him before his naturalization,
provision was made for the disposition of the 'possessory right' which one who
had declared his intention, after the passage of the act, could acquire as an
authorized settler. By the requisite residence and cultivation accompanied by
the prescribed preliminary notice and proof of claim and settlement, the alien
settler could perfect his right to a patent as soon as he completed his
naturalization, but until he was in a condition to 'prove up' for a patent, his
rights in the land were 'possessory' only.

20

Another provision is equally significant: 'All future contracts by any person

entitled to the benefit of this act, for the sale of the land to which he may be
entitled under this act before he or they have received a patent therefor, shall be
void.' This must refer to sales after the necessary residence and cultivation were
complete, because the grant was only to a settler 'who shall have resided upon
and cultivated the same for four consecutive years.' This implies continuous
residence and cultivation by the person or persons who make the claim. There
is no provision by which the possession of one can be added to that of another,
so as to complete the requisite term. The grant was to the occupant who had
himself conformed to the provisions of the act. The sale of a possessory right
could have no other effect than that of an abandonment of the settler's 'claim'
and a grant to the purchaser of the right to enter upon the abandoned lands and
begin a new settlement of his own.

21

This intention is even more distinctly shown in sect. 5, which being in pari
materia with sect. 4 may be resorted to as in some degree showing the meaning
of both sections. There the language is, 'that to all white male citizens . . . who
shall in all other respects comply with the foregoing section, . . . there shall be
and hereby is granted,' &c. This indicates clearly that there was to be no grant
except to persons who, by complying with the provisions of the act, had
qualified themselves to take.

22

We conclude, therefore, that under sect. 4 there was no grant of the land to a
settler until he had qualified himself to take as grantee by completing his four
years of residence and cultivation, and performing such other acts in the mean
time as the statute required in order to protect his claim and keep it alive. Down
to that time he was an authorized settler on the public lands, but not a grantee.
His rights in the land were statutory only, and cannot be extended beyond the
just interpretation of the language Congress has used to make known its will.

23

This brings us to the consideration of sect. 8, which, in substance, provided that

if a settler died before the expiration of the required four years' continued
possession, all his rights should descend to his heir-at-law, including his
widow, if he left one, and that proof of his compliance with the conditions of
the act up to the time of his death should be sufficient to entitle them to the
patent.

24

Here is a plain indication that the right of the settler before the expiration of his
four years' continued possession was something less than a title in fee to the
land, for the provision is not that the land shall descend, but the settler's rights
only. Had it been supposed that the title was already in the settler, subject only
to defeasance, if the conditions subsequent to the grant should not be

performed, we cannot but think that provision would have been made for a
transfer of the land free of the conditions, instead of only the settler's rights.
The object of Congress undoubtedly was to allow a settler's heirs to succeed to
his possessions and thus keep his rights alive. But for some such provision all
rights of the settler would have been lost by his death. As the law required full
four years' residence by the person who claimed the grant, if no provision and
been made for a continuance of his possession the land would have become
vacant on his death and open for a new settlement by a new settler, if the law
authorizing new settlements still remained in force. Hence it was provided that
the possessory rights of a deceased settler should go to his heirs, and that they
might get the land on making the requisite proof, without further residence and
cultivation of their own. Their title to the land was to come, not from their
deceased ancestors, but from the United States. The title, it is true, was granted
to them by reason of the possessory rights of their ancestor, but these were
rights which he could not transfer, and which passed to them under the statute
without any act of his. On his death his heirs became qualified grantees.
Whether they took immediately on his death or after proof of his compliance
with the provisions of the act while in life, need not be decided. It is enough for
this case that when their ancestor died he had nothing in the land which he
could transmit to them, and that what they afterwards got came from the United
States and not from him. All his rights in the land were dependant on his
completion of the four years' possession, but in consideration of what he had
done Congress made his heirs the special objects of its bounty if he died before
his own grant had been secured. We attach no importance to the word 'descend,'
as used in this section. In sect. 4 th word selected to convey substantially the
same idea was 'entitled.' The thing done was to give the heirs of a settler the
benefit of his rights and to designate them as the recipients of the bounty of the
government, instead of him.
25

We have not overlooked the fact that by the territorial enactments of Oregon a
settler's claim might descend to his heirs as real estate, and that his possessory
rights might be disposed of by will. But all these enactments are in conflict with
the act of Congress, and, therefore, inoperative. The heirs of the settler took
only such title as Congress gave them. The territorial government could not add
to or take from that grant. It is not contended that under the act of Congress a
settler might devise his interest in the land unless the fee passed to him before
his death.

26

It follows from this that Loring at the time of his death had no devisable estate
in the land, and that the heirs of his devisee cannot maintain this suit. This
makes it unnecessary to consider any of the questions that have been argued.

27

Decree affirmed.